Water enforcement dropped in business-friendly Haslam administration

As the debate over enforcement lingers, The Tennessean tried to determine what’s happening to the water quality of rivers, streams and reservoirs.
Karen Kraft, Mike Reicher/The Tennessean

Collierville firefighter Johnny Campbell gets rental kayaks set for customers on a section of the Wolf River between Lagrange and Moscow, Tenn. State officials cited Norfolk Southern Railway for discharging pollution into a tributary of the Wolf River.(Photo: Mike Brown / USAT Network)

Year after year, the inspectors found the same violations. Norfolk Southern Railway, they noted, allowed construction dirt to wash into tributaries of the Wolf River, a hunting source for bald eagles that flows from northern Mississippi to Memphis.

The railroad had graded much of 380 acres of farmland, exposing tan earth before paving the way for the Memphis Regional Intermodal Facility. With state-of-the-art cranes, the terminal would allow Norfolk Southern to rapidly transfer cargo containers from trains to trucks. Tennessee Gov. Bill Haslam, shovel in hand, posed at the 2011 groundbreaking and hailed the potential transportation jobs.

That same year — Haslam’s first in office — his administration began reshaping the state Department of Environment and Conservation to be more “customer focused.” Haslam’s hand-picked commissioner merged the three water protection divisions into one, shed a quarter of their positions, and nearly stopped penalizing polluters. The agency prided itself on helping companies comply with the law before resorting to fines.

TDEC inspectors found repeat water pollution violations at Norfolk Southern Corp.'s Memphis Regional Intermodal Facility in 2011 and 2012, but issued no fines at the time. This 2012 photo taken by inspectors documents the lack of erosion prevention on a stream bank.(Photo: Tennessee Department of Environment and Conservation)

State workers inspected Norfolk Southern’s construction site six times in 2011 and 2012, and documented repeat violations of the state Water Quality Control Act. The law allows penalties of up to $10,000 per day, but the environmental regulators never sent a formal enforcement order. Orders typically require permit holders to stop pollution according to specific plan, or face big fines. Instead, they issued warning letters as sediment continued to flow into streams.

Then in 2013, Norfolk Southern had mostly finished building and railroad officials asked TDEC to terminate its stringent construction water quality permit. Three years passed. Finally, in August 2016 TDEC and the state attorney general sued the railroad for violating its construction permit. A representative from the railroad did not respond to a request for comment for this story.

Experts and environmentalists say the Norfolk Southern episode represents a bigger shift in the state’s regulatory style. The Haslam administration has been reluctant to penalize polluters in today’s anti-regulation political climate, they say.

Chart showing water pollution enforcement orders from 2010 to 2016 in Tennessee.(Photo: TDEC)

In the four years before Commissioner Robert Martineau, Haslam's appointee who took over TDEC in 2011, the agency issued an average of 182 formal water pollution enforcement orders per year, with 117 in 2010. It plummeted under Martineau, reaching a low of 19 actions in 2015.

“I do think that the approach of setting the bar, letting the permittees know what’s expected of them — collaboratively working with them — I think that’s a good approach,” said Timothy Gangaware, associate director of the Tennessee Water Resources Research Center at the University of Tennessee, Knoxville. “But you still have to be willing to go out there and use the authority that the state has.”

Forcing compliance

TDEC officials deny any philosophical aversion to penalizing polluters. Instead, enforcement has dropped because of staff turnover, permit changes and TDEC’s efforts at preventing pollution, said Tisha Calabrese Benton, director of water resources. “We have done a lot proactively to help propel compliance,” she said.

At the Norfolk Southern site, officials pushed to get the railroad to stop polluting, she said.

“It wasn’t as if we said, ‘Oh look, there’s some pollution over there. We don’t need to go back,’” Benton said. “We were out there multiple times, providing feedback, building a case, and then coordinating with the Attorney General’s office so the case would have teeth.”

Benton could not explain why the agency didn’t fine the railroad earlier, in an effort to stop the pollution sooner.

TDEC inspectors found repeat water pollution violations at Norfolk Southern Corp.'s Memphis Regional Intermodal Facility in 2011 and 2012, but issued no fines at the time. This 2012 photo taken by inspectors shows a stream flowing with materials discharged from the facility's construction site.(Photo: Tennessee Department of Environment and Conservation)

In one high-profile case, the agency was criticized by environmentalists for reluctant enforcement against the Department of the Army and BAE Systems, an ammunition manufacturer. BAE poured an explosives chemical into the Holston River, which feeds into several municipal water supplies, from its Kingsport plant, in upper East Tennessee.

The state gave the Army until 2012 to comply with a pollution limit, but the ammunition plant kept polluting past the deadline, according to a lawsuit by the Tennessee Clean Water Network. The group criticized state enforcement for years.

A permit writer at TDEC removed herself from the case in 2014 partially because of the state’s failure to issue an enforcement order against the Army, according to the lawsuit. She wrote a letter, citing among other things “her ethical obligations as a professional engineer to protect the safety, health, and welfare of the public,” the lawsuit said.

Later in 2014, the state entered into an agreement with the Army to stem the pollution. Unsatisfied, the environmentalists filed the lawsuit and a federal judge issued a consent decree, incorporating the agreement's terms, with a 2020 deadline.

Benton said the state was limited in its enforcement tools because the Army was a federal agency, though the environmentalists challenged that notion. She added that the compliance agreement was effective: “An agreement gets work done more quickly,” she said.

Internal turmoil

The years after Martineau took office were a period of staff turmoil. Since fiscal 2011, the governor and legislature cut the water budget by 15 percent, and the number of staff positions by 25 percent, some of which were open positions. The budget cuts were partially caused, officials said, by a drop in permit fees from construction sites.

In 2012 Martineau fired Paul Davis, the director of Water Pollution Control, and merged that division with two others: groundwater and water supply. While the merger meant more efficient communication with permit holders — a drinking water plant, for instance, would now have one inspection instead of two — it also meant TDEC inspectors needed training on multiple technical disciplines, a process that’s still under way.

“We have had some internal process problems — and I own that,” said Benton. “But we’ve never had any kind of pressure not to take enforcement action.”

Another factor for the enforcement drop, according to TDEC: a spike in the preceding years. The agency issued more orders in 2007 and 2008, it said, because of changes in enforcement of stormwater runoff from construction sites. But permit holders became used to the new rules, and the state delegated some enforcement to local governments, leading to a decline in orders.

This year, water pollution enforcement orders have started to rebound as TDEC irons out its staffing, officials said. As of mid-September, TDEC was on track to write 55 orders in 2016, still well below pre-Martineau levels.

TDEC managers have emphasized preventing pollution through education and cooperation. TDEC hosts workshops for wastewater treatment plants, partners with government and nonprofit groups, and trains drinking water officials on pollution standards. Also, the administration has stressed the need to write clearer, more concise permits so companies and municipalities know exactly what’s expected of them.

“We’re trying for them to never be out of compliance to begin with, because at that point, you’ve prevented any additional insult to the environment,” said Deputy Commissioner Shari Meghreblian, who oversees environmental regulation.

Measuring the intangible

But is the approach working? TDEC leaders acknowledge that it’s too soon to tell whether the education efforts are paying off.

In fiscal 2015, officials started calculating the “compliance rate” — the proportion of facilities without violations at the time of inspection. For water resources, the rate dropped slightly, from 84 percent to 82 percent in fiscal 2016. But officials can’t compare progress since the previous administration.

“Is the environment getting better or worse under this administration?” asked Martineau. “You can’t just ask by how many (enforcement) orders are issued.”

Meanwhile, public complaints about water pollution climbed by 35 percent from 2012 through the end of 2015, with a spike in 2014. This year, complaints are on track to surpass last year. The rise, experts say, is hard to pin down. It could be a result of more urban runoff as Tennessee continues to develop, a heightened awareness of pollution after the Flint, Mich., drinking water crisis, or other factors. Some environmentalists say it could be an outgrowth of the agency’s approach to regulation.

“Enforcement, to the extent it’s happened, has fallen to the citizens,” said Scott Banbury, conservation program coordinator of the Tennessee chapter of the Sierra Club.

Most Tennesseans, though, aren’t going to file a lawsuit over pollution. They rely on state regulators to force businesses and local governments to comply with the law. TDEC leaders say they’re striking a balance between encouraging economic growth and water quality enforcement.

“It doesn’t really have to be business vs. environment,” Meghreblian said. “Being friendly to business and being ‘customer-service oriented’ doesn’t mean that you are letting people get away with stuff they shouldn’t be doing.”